CalRecycle’s Enforcement of the Rigid Plastic Packaging Container Law

The California Department of Resources Recycling and Recovery (CalRecycle) is actively enforcing compliance with the Rigid Plastic Packaging Container (RPPC) law. The law was originally enacted in 1991, and updated regulations were effective 2013. It is important that every manufacturer selling products in California using plastic packaging subject to RPPC requirements know and comply with the RPPC regulations and respond in a timely manner to CalRecycle enforcement.

The RPPC law requires product manufacturers selling or offering for sale products in California held in “rigid plastic packaging containers” to do so in containers that meet certain criteria or face penalties for noncompliant packaging. RPPCs are defined as plastic packages that have a relatively inflexible finite shape or form, with a capacity between eight fluid ounces and five fluid galleons (or their equivalent volume), are capable of at least one closure, and are for sale or distribution in California. RPPCs must meet one of five compliance options.

• 25% Postconsumer Materials – The plastic portion of the packaging must be made from at least twenty-five percent postconsumer (e.g., recycled plastic) material.
• 45% Recycling Rate – The product manufacturer must prove that the RPPC is recycled at a minimum forty-five percent rate.
• Reusable or Refillable RPPC – A reusable RPPC is one that is reused by the end-user to hold a replacement product at least five times. Refillable RPPCs are replenished by the product manufacturer at least five times.
• Source Reduced Containers – Source reduction may be achieved by reducing the container weight by ten percent, concentrating the product within the RPPC by at least ten percent, achieving a ten percent reduction by a combination of container weight reduction and increased product concentration, or showing that the RPPC weighs ten percent less than a similar container for a similar product on the market.
• Floral Industry Reuse of Containers – This option is specific to RPPCs that contain floral preservatives and are reused by the industry for a minimum of two years.

The regulations provide that for options 1 through 4 above, compliance may be achieved by averaging across product lines or sub-lines pursuant to formulas provided in the RPPC regulations.

The RPPC regulations establish a three-stage enforcement process. First, CalRecycle will issue a registration notice to companies it has identified as selling or offering for sale products into the state held in RPPCs. Second, from this set of registered product manufacturers, CalRecycle will issue notices of precertification. These notices are issued by January 31^st of the year prior to the compliance measurement period—which consists of a calendar year. At this stage, companies have the opportunity to identify and resolve potential compliance issues prior to the start of the anticipated measurement period. Product manufacturers will be asked to confirm contact and product information, and are given the opportunity to seek an Advisory Opinion that can address questions regarding whether a package falls under the RPPC definition or whether a package meets one of the five compliance options for RPPCs. The third stage is certification. Notices of Certification are sent by March of the measurement period. The product manufacturer will then have 90 days from receipt of the Certification Notice to seek Advisory Opinions for newly introduced products, submit waiver petitions, or claim exemptions.

Assuming no extension, the product manufacturer’s compliance certification is due by April 1^st of the year following the measurement period.

Penalties may be assessed where a product manufacturer fails to timely respond to notices or submit compliance certifications, for incomplete or inaccurate certifications, for container non-compliance, or for submission of false or misleading information. Container manufacturers, who are responsible for submitting materials to support a product manufacturer’s compliance certification, may also be subject to penalties. Individual violations are capped at $50,000, and annual penalties cannot exceed $100,000.

Ellison Schneider Harris & Donlan attorneys can help clients understand the RPPC requirements and assist with compliance questions. For more information contact Chase K. Maxwell, ckm(at)eslawfirm.com, or Lynn Haug, lmh(at)eslawfirm.com.